The authority which constables have to execute writs is derived from the statute of 1795, c. 41. By the third section of this statute, it is enacted that a constable may serve upon any person, in the town to which the constable may belong, any writ, summons, or execution, in any personal action, where the damages sued for or recovered shall not exceed 70 dollars.
This was not a personal, but a real action: the service by the constable was therefore void ; the tenant had no legal notice of the suit, and was guilty of no loches in neglecting to appear and answer to the writ. He ought not to have been called, and the judgment rendered on his supposed default was erroneous, and must be reversed.
Judgment reversed.